Tuesday, March 11, 2008

A (Potentially) Very Interesting Separation of Powers Case

Yesterday, the House Judiciary Committee filed suit against Joshua Bolten and Harriet Miers, President Bush's chief of staff and former White house counsel, respectively, to compel them to testify before Congress about their involvement in the U.S. attorneys firing scandal that occurred in 2006. The committee originally subpoenaed Miers and Bolton quite a while ago; on the advice of the Justice Department they refused to comply, asserting several forms of executive privilege. Last month the Democratic majority in the House voted to hold Miers and Bolton in contempt of Congress, but the Justice Department refused to refer the contempt citation to a grand jury for enforcement on the same legal grounds. Hence the civil suit filed yesterday.

According to a Washington Poststory, this is the first time that a body of Congress has filed a civil suit against the Executive Branch to enforce a subpoena. The suit raises, to my eye, at least three interesting separation of powers issues, which I'll list here and discuss more fully as the case develops. First, the Committee must show that it has standing to sue the Executive Branch. In the past federal courts have sometimes ruled that members of Congress individually do not have standing to sue over executive acts. Second, if memory serves I learned in my Presidential Powers class in law school that the D.C. Circuit has ordered the dismissal of civil suits to quash congressional subpoenas, reasoning that in the interest of comity with the other branches courts should stay out of disputes about testimony before Congress until forced by a contempt proceeding to get involved. Here, there is no contempt proceeding because the Justice Department has refused to prosecute the contempt charge, but that reasoning may or may not be applied in a suit to enforce a subpoena . Finally, there are, of course, the actual disputes about whether and how the privileges cited (see the Post story for more details) apply.

If I find a copy of the complaint I'll post it.

Update: Success: I got the complaint from the Judiciary Committee's website.